NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

PACIFIC COAST COMMUNITY SERVICES, INC.,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________

2020-1219

______________________

Appeal from the United States Court of Federal Claims 

in No. 1:17-cv-00854-RAH, Judge Richard A. Hertling.

______________________

Decided: April 30, 2021

______________________

TIMOTHY TURNER, Whitcomb, Selinsky, PC, Denver, 

CO, for plaintiff-appellant. Also represented by JOSEPH 

ANTHONY WHITCOMB.

 ALISON VICKS, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, for defendant-appellee. Also represented by JEFFREY 

B. CLARK, ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA 

PREHEIM.

 ______________________

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2 PACIFIC COAST COMMUNITY v. UNITED STATES

Before MOORE, HUGHES, and STOLL, Circuit Judges.

HUGHES, Circuit Judge.

This is a government contracts appeal. The Court of 

Federal Claims held that the government was entitled to 

summary judgment because, despite a showing by Pacific 

Coast Community Services, Inc. that the government ordered a constructive change, the contractor nevertheless 

failed to prove that it suffered any damages. We agree with 

the Court of Federal Claims and affirm.

I

In August 2012, Federal Protective Service (FPS) issued a solicitation for commercial administrative support 

services with a period of performance of one base year and 

four subsequent one-year option periods. The solicitation 

required offerors to provide five full-time equivalent employees for four Contract Line Item Numbers (CLINs). The 

solicitation contemplated an award of a firm-fixed-price 

contract1 charged at a monthly rate for each of the CLINs 

calculated from employees’ productive hours—excluding, 

for example, federal holidays. The solicitation incorporated 

a “Proposal Pricing Worksheet” on which offerors were to 

provide the hourly and monthly rates and the total price by 

CLIN. This worksheet calculated total productive hours as

the hours in an employee’s work year (2,080 hours) less federal holidays (80 hours) and an unspecified number of vacation hours. J.A. 233. The solicitation also incorporated by 

reference FAR 52.212-4, J.A. 75, and expressly required 

the contractor to submit “accurate invoices that reflect the 

services provided each month” and to attach to the invoices

1 “A firm-fixed-price contract provides for a price 

that is not subject to any adjustment on the basis of the 

contractor’s cost experience in performing the contract.” 

FAR 16.202-1. Thus, under a firm-fixed-price contract, the 

risk of unforeseen costs is borne wholly by the contractor.

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PACIFIC COAST COMMUNITY v. UNITED STATES 3

a separate sheet detailing variance from the contract requirements, if any, id. at 180. The solicitation additionally

required the contractor to notify FPS in advance of any contractor employee’s absence of longer than two weeks and to 

provide a replacement employee to perform the duties required by the position. 

Pacific Coast submitted a proposal listing 1,888 productive hours per employee per year, or 2,000 hours less 

annual vacation as disclosed in its Proposal Pricing Worksheet. FPS awarded the contract to Pacific Coast and Pacific Coast began performance in October 2012. 

In June 2013, FPS assigned a new Contracting Officer 

to the contract who began requiring Pacific Coast to perform 2,000 hours of productive hours with full replacement 

of any absent employee regardless of the duration of their 

absence. Over the next few years, as FPS awarded Pacific 

Coast subsequent option years, FPS and Pacific Coast disputed whether the contract required 2,000 or 1,888 productive hours per employee per year, with Pacific Coast 

continuing to provide no more than 1,888 productive hours 

and FPS accordingly rating Pacific Coast’s performance as 

“marginal.” J.A. 4, 9 (Pacific Coast expressly disclaimed before the trial court “that [its] level of performance exceeded 

1,888 productive hours per year, per CLIN.”). This dispute 

culminated in Pacific Coast filing suit in the Court of Federal Claims for, among other things, breach or constructive 

change of contract. Pacific Coast argued that it was owed 

the difference between the 1,888 productive hours it promised in its proposal and the 2,000 productive hours FPS demanded.

Following discovery and the parties’ cross motions for 

summary judgment, the Court of Federal Claims agreed 

with Pacific Coast that the contract required only 1,888 

productive hours per employee per year and that the government had constructively changed the contract when it 

demanded 2,000 productive hours. However, the Court of 

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4 PACIFIC COAST COMMUNITY v. UNITED STATES

Federal Claims held also that Pacific Coast had failed to 

prove that any harm had resulted from the government’s 

constructive change and awarded no damages. This appeal 

followed.

II

We review a grant of summary judgment by the Court 

of Federal Claims without deference. Alamo v. United 

States, 850 F.3d 1349, 1351 (Fed. Cir. 2017). Summary 

judgment is appropriate when, viewing the facts in the 

light most favorable to the non-moving party, there are no 

genuine issues of material fact and the movant is entitled 

to judgment as a matter of law. Id. This court reviews the 

Court of Federal Claims’ legal conclusions de novo. Shell 

Oil Company v. United States, 896 F.3d 1299, 1306 

(Fed. Cir. 2018).

Pacific Coast argues that the Court of Federal Claims 

erred by requiring Pacific Coast to prove damages in order 

to recover for constructive change of a firm-fixed-price contract. Instead, Pacific Coast asserts it is entitled to the difference between the price it might have bid for 2,000 hours 

per year and the price it bid for 1,888 hours per year to 

reflect the added risk it bears under a firm-fixed-price contract. See Appellant’s Br. 17–18. But it is well-established 

that a claim for compensation cannot be based on a speculative theory of damages. Indiana Michigan Power Co. v. 

United States, 422 F.3d 1369, 1373 (Fed. Cir. 2005); San 

Carlos Irr. & Drainage Dist. v. United States, 111 F.3d 

1557, 1563 (Fed. Cir. 1997). And courts cannot award an 

equitable adjustment when doing so would result in a 

windfall. See Admiral Fin. Corp. v. United States, 378 F.3d 

1336, 1345 (Fed. Cir. 2004). Since Pacific Coast admitted 

that it did not provide a “level of performance exceed[ing]

1,888 productive hours per year, per CLIN,” J.A. 9, Pacific 

Coast’s failure to provide any evidence to show costs incurred as a result of the government’s constructive change 

is fatal. The Court of Federal Claims properly rejected 

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PACIFIC COAST COMMUNITY v. UNITED STATES 5

Pacific Coast’s argument that it should be entitled to a 

speculative increase in the “value” of the contract.

Pacific Coast’s reliance on Empire Blue Cross & Blue 

Shield v. United States, 26 Cl. Ct. 1393 (1992), to support 

its claim for “value” compensation is misplaced. Appellant’s 

Br. 17–23. In Empire, the government sought to claw back 

additional payments made to a firm-fixed-price contractor

whose staffing levels had decreased despite the government’s purchase of additional work. Empire, 26 Cl. Ct at 

1395. Empire is easily distinguished for at least three reasons. First, in Empire, it was the government who sought 

reimbursement from the contractor under a firm-fixedprice contract as opposed to, as here, a contractor seeking 

additional payment from the government. Id. Second, the 

Court of Federal Claims in Empire found that the contractor had actually incurred costs by dedicating idle staff to

completing the new work under a theory of alternative utilization of available resources. Id. at 1396. Finally, in Empire the government actually bought new work which the 

contractor actually performed. Id. Here, Pacific Coast did 

not and cannot advance such a claim because it produced 

no evidence to show that it actually provided work in excess 

of 1,888 productive hours per year and, even more, has admitted that it did not perform beyond the contracted-for 

1,888 hours. J.A. 9. Empire is thus inapposite.

Pacific Coast also argues on appeal that the Court of 

Federal Claims erred by requiring it to prove damages because the hours requirement of the contract was not a deliverable. Appellant’s Br. 23. But Pacific Coast itself 

argued to the trial court that the contract only required 

1,888 productive hours per employee per year and prevailed. See, e.g., J.A. 568. It is unclear whether Pacific 

Coast preserved this argument below, but even if we consider it, the argument fails. The contract requires that contractor staff be physically present on site for the contracted 

number of hours, id. at 55, and further requires the contractor to provide invoices reflecting those hours, id. at 75, 

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6 PACIFIC COAST COMMUNITY v. UNITED STATES

180. The Court of Federal Claims properly interpreted the 

contract to require 1,888 hours per employee per year as a 

deliverable.

III

We have considered Pacific Coast’s remaining arguments and find them unpersuasive. Because we agree with 

the Court of Federal Claims that Pacific Coast was required to prove damages resulting from the government’s 

constructive change and failed to do so, we affirm.

AFFIRMED

Case: 20-1219 Document: 29 Page: 6 Filed: 04/30/2021